Mind Your Business

Are working interviews legal?

2012-05-15T21:03:00Z Are working interviews legal?Mary Luros Napa Valley Register
May 15, 2012 9:03 pm  • 

Dear Mary, My store is growing, and I’m currently advertising a position for a sales clerk. A regular job interview isn’t going to show me whether someone is a good match. Can I use “working interviews” instead? That way, I can see if they work well and get some free labor while I’m at it. It would also be good training for them to see what the job involves and what the job requires.

A working interview involves bringing in a job candidate to work for a few hours or a few days without actually hiring them. The idea is that instead of a regular job interview, candidates would have to prove themselves in a hands-on setting.

It sounds like a great idea, but unfortunately, working interviews do not exempt you from your obligations as an employer. You can’t ask someone to perform work for you without paying them minimum wage for those hours.

You can test an applicant’s typing or math skills, and you can ask them how they would handle various workplace situations, but having them actually perform productive work is off limits, unless you plan on compensating them and following California labor laws.

Temporary employment agencies popularized working interviews, which started the practice by offering “temps” to employers under a trial or probationary arrangement to determine if the applicant would work out. Employers cycle through these “temps” until they find one they like, and then hire them. This practice can be legal, because during this period the temp agency is compensating the applicant as an employee.

There’s no such thing as a free trial period when it comes to employment. If you want to give applicants a chance to prove themselves, you should consider hiring applicants for a trial or probationary period.

With an introductory period, the employer hires the applicant for a limited period of time, typically 90 days. During that period, the employee must prove their abilities and show that they are a good fit for the business. Until the introductory period is up, they are not entitled to certain benefits and they may be terminated at any time.

Employees must be paid no less than minimum wage, they are eligible for workman’s compensation, and you must withhold payroll taxes. You should follow your typical employment rules and perform a background check, give them a copy of the employee handbook, and have them sign your confidentiality agreement.

A good way to be clear about the probationary period is to put it in clear terms in an offer letter. Explain how long the trial period will last and how much compensation and benefits the employee will receive. Emphasize that this offer is not a promise of future employment.

Probationary periods can also be extended. This often occurs when there’s a change in supervisors, or when an employee takes a leave of absence. It can also occur when an employee’s attendance or performance causes concern. Make sure your employee receives clear performance standards and understands their job duties. Document any performance that is less than satisfactory and give your employee an opportunity to correct the problem through regular performance reviews.

Keep in mind that California is an “at-will” state; generally speaking, you can terminate an employee at any time, with or without cause. An employee who completes a probationary period has no guarantee of ongoing employment.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.

Copyright 2015 Napa Valley Register. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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